ag-#1228010-v3-pearson v kemp consolidated mtd mpi brief · 2020. 12. 6. · v\vwhpv sdwwhuq...

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

CORECO JA’QAN PEARSON, et al., ) )

Plaintiffs, ) ) CIVIL ACTION NO. v. ) 1:20-cv-4809-TCB ) BRIAN KEMP, et al., ) )

Defendants. )

DEFENDANTS’ CONSOLIDATED BRIEF IN SUPPORT OF THEIR

MOTION TO DISMISS AND RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR INJUNCTIVE RELIEF

Christopher M. Carr Attorney General Bryan K. Webb Deputy Attorney General Russell D. Willard Senior Assistant Attorney General Charlene S. McGowan Assistant Attorney General Office of the Georgia Attorney General 40 Capitol Square SW Atlanta, GA 30334

Counsel for the State Defendants

Carey Miller Josh Belinfante Melanie Johnson Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street NW Atlanta, GA 30318

Case 1:20-cv-04809-TCB Document 61 Filed 12/05/20 Page 1 of 53

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TABLE OF CONTENTS

INTRODUCTION .................................................................................................... 1 FACTUAL BACKGROUND .................................................................................. 4

I. Georgia’s Electronic Voting System is Secure and Has Not Been

Compromised. ............................................................................................. 4 A. Adoption and selection of Georgia’s electronic voting system. ................ 5 B. Testing and certification of Georgia’s voting system. ............................... 7 C. Georgia’s electronic voting system has not been compromised and

Plaintiffs’ assertions to the contrary are disproven by the Risk-Limiting Audit. ............................................................................................. 9

II. Absentee Ballots Were Validly Processed According to Law ..................12

ARGUMENT AND CITATION OF AUTHORITIES .......................................15

I. The Court Lacks Subject Matter Jurisdiction because Plaintiffs Cannot

Establish Article III Standing..................................................................15 A. Plaintiffs have not Alleged an Injury in Fact Sufficient to Form a Basis

for Standing. ................................................................................................17 B. Plaintiffs do not have Standing as Presidential Electors. .......................19 C. Plaintiffs’ Alleged Injuries are not Traceable to the State

Defendants. ..................................................................................................21 II. Plaintiffs’ Claims are Moot..........................................................................24 III. Plaintiffs’ Claims are Barred by the Eleventh Amendment. ...................25 IV. Laches Bars Plaintiffs’ Claims for Post-Election Relief. ..........................27 V. The Court should Abstain from Granting Relief. .....................................30


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VI. Plaintiffs’ Motion for Injunctive Relief Should be Denied. ......................34 A. Plaintiffs are not likely to succeed on the merits of their claims. ..........34 B. The loss of Plaintiffs’ preferred candidate is not irreparable harm. ....44 C. The balance of equities and public interest weigh heavily against an

injunction. ....................................................................................................45 CONCLUSION .......................................................................................................47


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INTRODUCTION Plaintiffs, a group of disappointed Republican presidential electors, filed a

Complaint alleging widespread fraud in the November general election in Georgia,

weaving an unsupported tale of “ballot stuffing,” the switching of votes by an

“algorithm” uploaded to the state’s electronic voting equipment that switched votes

from President Trump to Joe Biden, hacking by foreign actors from Iran and China,

and other nefarious acts by unnamed actors. Plaintiffs did not bring this election

challenge in state court as provided by Georgia’s Election Code. Instead, they ask

this Court to change the election outcome by judicial fiat and order the Governor,

the Secretary, and the State Election Board to “de-certify” the results of the election

and replace the presidential electors for Joe Biden (who were selected by a majority

of Georgia voters by popular vote as provided by state law) with presidential electors

for President Trump. Their claims would be extraordinary if true, but they are not.

Much like the mythological “kraken” monster1 after which Plaintiffs have named

this lawsuit, their claims of election fraud and malfeasance belong more to the

kraken’s realm of mythos than they do to reality.

1 A “kraken” is a mythical sea monster appearing in Scandinavian folklore, being “closely linked to sailors’ ability to tell tall tales.” See https://en.wikipedia.org/wiki/Kraken.


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The truth is that the 2020 general election was, according to the federal agency

tasked with overseeing election security, “the most secure in history.” (See Exhibit

B.)2 Cybersecurity experts have determined that there is “no evidence that any

voting system deleted or lost votes, changed votes, or was in any way

compromised.” (Id.) The accuracy of the presidential election results has been

confirmed through at least (1) the statewide risk-limiting audit; (2) a hand recount;

and (3) independent testing, which has confirmed that the security of the state’s

electronic voting equipment was not compromised.

As a threshold matter, the Eleventh Circuit issued an opinion today that

mandates dismissal of this action for lack of standing and mootness in the related

case of Wood v. Raffensperger, No. 20-14418, which raised many of the same claims

as this case and sought similar relief. (See slip opinion attached as Exhibit A). In

affirming the district court’s decision denying Wood’s motion to enjoin certification

of the election results, the panel held:

We agree with the district court that Wood lacks standing to sue because he fails to allege a particularized injury. And because Georgia has already certified its election results and its slate of presidential electors, Wood’s requests for emergency relief are moot to the extent they concern the 2020 election. The Constitution makes clear that

2 See Cybersecurity & Infrastructure Security Agency’s Joint Statement From Elections Infrastructure Government Coordinating Council & the Election Infrastructure Selector Coordinating Committees, November 12, 2020. A true and correct copy of this statement is attached as Exhibit B.


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federal courts are courts of limited jurisdiction, U.S. Const. art. III; we may not entertain post-election contests about garden-variety issues of vote counting and misconduct that may properly be filed in state courts.

(slip op. at 1). This decision squarely controls, and the Court should dismiss the

action because Plaintiffs lack an injury in fact sufficient to establish Article III

standing. Certification of the election results also moots Plaintiffs’ claims, as the

Court has no authority under federal law to undo what has already been done.

Other threshold issues bar the relief Plaintiffs seek. Even if they were not

moot, Plaintiffs’ claims are barred by laches because of their inexcusable delay in

raising their challenge to the State’s electronic voting system and absentee ballot

procedures until after their preferred candidate lost. Plaintiffs’ claims are also barred

by the Eleventh Amendment to the U.S. Constitution, which bars suits for

retrospective relief against state officials acting in their official capacity absent a

waiver by the State. Similarly, despite their attempts to raise constitutional claims,

Plaintiffs’ lawsuit is really an election contest challenging the Presidential election,

which can and should be brought in a Georgia court as some of Plaintiffs’ allies have

recently done.

But most importantly, there is no credible evidence to support the drastic and

unprecedented remedy of substituting certified presidential election results with the

Plaintiffs’ preferred candidate. Without this, Plaintiffs cannot clearly establish the


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required elements for injunctive relief. Like every state, Georgia has a compelling

interest in preserving the integrity of its election process. “Confidence in the

integrity of our electoral processes is essential to the functioning of our participatory

democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Public confidence in the

electoral process would certainly be undermined by a court invalidating the certified

results of a presidential election in which nearly 5 million Georgians cast ballots.

This Court should decline Plaintiffs’ unsupportable efforts to overturn the expressed

will of the voters, and should deny their request for relief and dismiss this action.

FACTUAL BACKGROUND

I. Georgia’s Electronic Voting System is Secure and Has Not Been Compromised. Plaintiffs allege wide-ranging conspiracy theories that Georgia’s electronic

voting system has been compromised by Hugo Chavez and the Venezuelan

government (or China and Iran, depending on which “expert” is asked), is infected

with a vaguely described “weighted” algorithm that switches votes between

candidates, and otherwise produces fraudulent results. In support of their argument,

Plaintiffs cite to the un-signed declaration of Dr. Shiva Ayyadurai,3 other redacted

3 Dr. Ayyadurai claims he is “an engineer with vast experience in engineering systems, pattern recognition, mathematical and computational modeling and analysis.” [Doc. 6-1, ¶ 2]. Elsewhere, Dr. Ayyadurai claims to be the inventor of


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declarations, hearsay in the form of various news articles, and contested evidentiary

filings in the case Curling v. Raffensperger, No. 1:17-cv-2989 (N.D. Ga.).4

The Plaintiffs—blinded by either willful ignorance or a lack of basic

knowledge of Georgia elections—are incorrect. Georgia’s electronic voting system

was adopted in compliance with state and federal law, is certified by the Election

Assistance Commission following inspection and testing conducted by independent

Voting System Test Laboratories (“VSTLs”), and has not been compromised. A

review of the facts, as opposed to Plaintiffs’ conspiracies, confirms the inaccuracy

of Plaintiffs’ allegations.

A. Adoption and selection of Georgia’s electronic voting system.

In 2019, the Georgia General Assembly enacted House Bill 316 (“HB 316”),

a sweeping and comprehensive reform of Georgia’s election laws, which also

modernized and further secured Georgia’s voting system. Specifically, the General

Assembly chose to require a new unified system of voting throughout the State—

electronic mail. See Sam Biddle, The Crazy Story of the Man Who Pretended to Invent Email, Business Insider (Mar. 6, 2012), https://www.businessinsider.com/the-crazy-story-of-the-man-who-pretended-to-invent-email-2012-3. State Defendants object to any consideration of Dr. Ayyadurai’s report as he is not qualified to offer the opinions proffered and utilizes unreliable methodology. 4 The Curling matter is now subject to two appeals pending in the Eleventh Circuit Court of Appeals, docket numbers 20-13730 and 20-14067.


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moving the State away from the secure, but older, direct-recording electronic

(“DRE”) voting system to a voting system utilizing Ballot-Marking Devices

(“BMDs”) and optical scanners. The General Assembly determined this replacement

of DREs with BMDs should occur “as soon as possible.” O.C.G.A. § 21-2-300(a)(2).

The legislation placed the responsibility of selecting the equipment for the new

voting system on the Secretary of State. O.C.G.A. § 21-2-300(a). However, contrary

to Plaintiffs’ assertions that Governor Kemp and Secretary Raffensperger “rushed

through the purchase of Dominion voting machines and software,” (Doc. 6, p. 15),

the procurement of Georgia’s new voting system was completed through an open

and competitive bidding process as required by Georgia’s State Purchasing Act,

O.C.G.A. § 50-5-50. Secretary Raffensperger did not make the purchasing decision

alone, but established a Selection Committee comprised of seven individuals who

were tasked with reviewing bid proposals.5 Selection Committee members evaluated

those proposals using criteria and processes set forth on a Master Technical

Evaluation spreadsheet.6 Of the three requests for proposals evaluated by the

Selection Committee, Dominion Voting Systems (“Dominion”) received the highest

overall score. Id.

5 See https://sos.ga.gov/admin/uploads/Selection%20Committee%20Bios.pdf 6 See https://sos.ga.gov/admin/uploads/MasterTechnicalEvaluation_redacted.xls


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On July 29, 2019, Secretary Raffensperger posted a Notice of Intent to Award

the contract for the statewide voting system to Dominion. No bid protests were

received by the State, and Secretary Raffensperger issued a final Notice of Intent to

Award on August 9, 2019. Id. The voting system consists of BMDs that print ballots

by way of a connected printer and optical scanners connected to a locked ballot box.

The Dominion BMD allows the voter to make selections on a screen and then prints

those selections onto a paper ballot. The voter has an opportunity to review the paper

ballot for accuracy before placing it into the scanner. After scanning, the paper ballot

drops into a locked ballot box connected to the scanner. BMDs thus create an

auditable, verifiable ballot, as required by statute. O.C.G.A. § 21-2-300(a)(2)

(“electronic ballot markers shall produce paper ballots which are marked with the

elector’s choices in a format readable by the elector”) (emphasis added).

B. Testing and certification of Georgia’s voting system.

Georgia’s voting system is subject to two different certification requirements.

First, the voting system must have been certified by the United States Election

Assistance Commission (“EAC”) at the time of procurement. O.C.G.A. § 21-2-

300(a)(3). Second, the voting system must also be certified by the Secretary of State

as safe and practicable for use. Georgia’s BMD system meets both requirements.


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The Help America Vote Act (“HAVA”) created the EAC, which set up a rigorous

process for voting-equipment certification, working with committees of experts and

coordinating with the National Institute of Standards and Technology. 52 U.S.C. §

20962; see also 52 U.S.C. §§ 20962, 20971 (test lab standards). The EAC certifies

voting systems as in compliance with the Voluntary Voting System Guidelines

(“VVSG”), version 1.0, and does so by utilizing approved, independent Voting

System Test Laboratories (“VSTL”). In the case of the voting system utilized in

Georgia, SLI Compliance served as the VSTL tasked with testing the system for

EAC purposes. The system utilized by Georgia, Democracy Suite 5.5-A, was

certified by the EAC on January 30, 2019.7

Separately, the Secretary of State utilized another independent EAC-certified

VSTL, Pro V&V, to conduct testing for state certification of the voting system.

Following the VSTL’s testing, the Secretary issued a Certification of the Dominion

Voting Systems as meeting all applicable provisions of the Georgia Election Code

and Rules of the Secretary of State on August 9, 2019.8 That certification has been

7 See United States Election Assistance Commission, Agency Decision — Grant of Certification, https://www.eac.gov/sites/default/files/voting_system/ files/Decision.Authority.Grant.of.Cert.D-Suite5.5-A.pdf 8 Plaintiffs erroneously claim that both the Certificate and a test report signed by Michael Walker were “undated” and have attached altered documents that have been cropped to remove the dates of the documents. See Compl., ¶12 and Exhibits 5 and 6 thereto. A correct copy of the Certificate showing the date of August 9,


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updated due to de minimis changes in system components on two different occasions

since, on February 19, 2020, and again on October 5, 2020.

C. Georgia’s electronic voting system has not been compromised and Plaintiffs’ assertions to the contrary are disproven by the Risk-Limiting Audit.

Plaintiffs’ conjecture and speculation does not rebut the reality that Georgia’s

voting system has not been compromised. Not only have two separate EAC-Certified

independent VSTLs confirmed that the system operates as intended, but Georgia’s

risk-limiting audit (“RLA”) further confirms that no “weighted” vote switching

occurred.

Shockingly, the basis for Plaintiffs’ outlandish claims of system compromise

are rooted in suspect statistical—not software—analyses that they suggest

irrefutably proves vote switching occurred. For example, in Dr. Ayyadurai’s

unsigned declaration, the author references (without citation) vote totals in certain

precincts for the proposition that a “weighted race” algorithm must be responsible.

(See generally Doc. 6-1.) The author, however, makes no attempt to evaluate any

other reasons voters may have chosen not to vote for President Trump. Indeed, the

2019 may be viewed at https://sos.ga.gov/admin/uploads/Dominion_Certification.pdf. A copy of the test report showing a date of August 7, 2019 may be found at https://sos.ga.gov/admin/uploads/Dominion_Test_Cert_Report.pdf.


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author of that declaration speculates that 48,000 of 373,000 votes cast in Dekalb

County were switched in this manner from Trump to Biden, (Doc. 6-1, p. 28),

meaning that (under the author’s theory) the results in Dekalb County would be

106,373 for Trump to 260,227 for Biden (or approximately 28.6% to 70%). Of

course, this would be extraordinarily unusual for heavily democratic Dekalb County,

in which President Trump received 51,468 votes (16.47%) in 2016, when the State

was using an entirely different voting system.9

Moreover, the existence of such a “weighted” algorithm would have been

detected in the RLA conducted this year. Following the counties’ tabulation of the

November election results, but prior to certification, Secretary Raffensperger was

required by law to conduct a risk-limiting audit in accordance with O.C.G.A. § 21-

2-498. State Election Board Rule 183-1-15-.04 provides that the Secretary of State

shall choose the particular election contest to audit. Recognizing the importance of

clear and reliable results for such an important contest, Secretary Raffensperger

selected the presidential race for the audit.10 See Exhibit C.

9 See Dekalb County Election Results, 2016, available at https://results.enr.clarityelections.com/GA/DeKalb/64036/183321/en/summary.html. 10 See Statement of Secretary Raffensperger, “Historic First Statewide Audit of Paper Ballots Upholds Results of Presidential Race, attached as Exhibit C hereto and available at


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County election officials were then required to count by hand all absentee

ballots and paper ballots printed by the Dominion BMDs. See id. The audit

confirmed the same outcome of the presidential race as the original tabulation using

the Dominion voting systems equipment. Id. While there was a slight differential

between the audit results and the original machine counts, the differential was well

within the expected margin of error that occurs when hand-counting ballots. Id. A

2012 study by Rice University and Clemson University found that hand counting

ballots in post-election audit or recount procedures can result in error rates of up to

2 percent. Id. In Georgia’s audit, the highest error rate reported in any county recount

was 0.73%, and most counties found no change in their final tally. Id.

The audit results refute Plaintiffs’ speculation that Dominion machines or

software might have somehow flipped, switched, or “stuffed” ballots in the 2020

presidential election. Id. Because Georgia voters can verify that their paper ballots

(whether hand-marked absentee ballots or ballots marked by BMDs) accurately

reflect their intended votes, any actual manipulation of the initial electronic vote

count would have been revealed when the hand count of paper ballots presented a

different result. The fact that this did not happen forecloses the possibility that

https://sos.ga.gov/index.php/elections/historic_first_statewide_audit_of_paper_ballots_upholds_result_of_presidential_race


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Dominion equipment or software had been manipulated to somehow record false

votes for one candidate or to eliminate votes from another.

In sum, the components of Georgia’s voting system have been evaluated,

tested, and certified by two different independent laboratories as compliant with both

state and federal requirements and safe for use in elections. Neither of those two

VSTLs identified any “weighted” vote counting algorithm, nor any other

impropriety. And, in Georgia’s 2020 general election, the correct operation of the

voting system was again confirmed by the state’s risk-limiting audit.

II. Absentee Ballots Were Validly Processed According to Law

Plaintiffs’ claim that the rules under which county elections officials verified

absentee ballots are contrary to Georgia law is also without merit. Absentee ballots

for the 2020 general election were processed by county election officials according

to the procedures established by the Georgia legislature. These procedures were part

of HB 316, bipartisan legislation passed in 2019 to reform the state’s election code

and implement a new electronic voting system. The reforms kept in place Georgia’s

policy of “no excuse” absentee voting, but modified the technical requirements for

absentee ballots. HB 316 modified the language of the oath on the outer absentee

ballot envelope to leave the signature requirement but remove the elector’s address

and date of birth. See O.C.G.A. § 21-2-384. Further, HB 316 added a “cure”


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provision, which requires election officials to give a voter until three days after the

date of the election to cure an issue with the voter’s signature before rejecting an

absentee ballot for a missing or mismatched signature on the outer envelope. See

O.C.G.A. § 21-2-386(a)(1)(C). The “cure” provision was added to the statute’s

requirement that election officials “promptly notify” the voter of a rejected absentee

ballot due to a missing or mismatched signature.

On November 6, 2019, the Democratic Party of Georgia, DSCC, and DCCC

(collectively, “Political Party Organizations”) sued the State Defendants, alleging

that the “promptly notify” language of O.C.G.A. § 21-2-386(a)(1)(C) was vague and

ill-defined and left counties without standards for verifying signatures on absentee

ballots. (App’x Vol. I at 144-49).

While that action was pending, the State Election Board (“SEB”) approved a

rule that established a uniform standard for counties to follow to “promptly notify”

voters when their absentee ballot is rejected as required by O.C.G.A. § 21-2-

386(a)(1)(C). The rule provides that when a timely submitted absentee ballot is

rejected, the board of registrars or absentee ballot clerk must send the voter notice

of the rejection and opportunity to cure within three business days, or by the next

business day if within ten days of Election Day. Ga. Comp. R. & Regs. r. 183-1-14-

.13 (the “Prompt Notification Rule”).


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The Prompt Notification Rule was adopted pursuant to the SEB’s rule-making

authority under O.C.G.A. § 21-2-31(2). It provides a uniform three-day standard for

“prompt” notification required by O.C.G.A. § 21-2-386(a)(1)(C) when an absentee

ballot is rejected, so that all counties give notice in a uniform manner. The Prompt

Notification Rule was promulgated pursuant to the Georgia Administrative

Procedure Act, published for public comment, and discussed at multiple public

hearings before it became effective on March 22, 2020.

Because the Prompt Notification Rule resolved the issues in the pending

lawsuit, the parties resolved the matter in a settlement agreement that included,

among other terms, an agreement that (1) the State Election Board would promulgate

and enforce the Prompt Notification Rule; and (2) the Secretary of State would issue

guidance to county election officials regarding the signature matching process.

On May 1, 2020, the Secretary of State distributed an Official Election

Bulletin (“OEB”), advising county election officials of the Prompt Notification Rule

and providing guidance for reviewing signatures on absentee-ballot envelopes.

(Declaration of Chris Harvey ¶ 5).11 The OEB instructed that after an election official

makes an initial determination that the signature on the absentee ballot envelope does

11 The Harvey Declaration was submitted in the related case of Wood v. Raffensperger, Civil Action No. 1:20-CV-4651-SDG and is attached as Exhibit D.


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not match the signature on file for the voter pursuant to O.C.G.A. § 21-2-

386(a)(1)(B) and (C), two additional registrars, deputy registrars, or absentee ballot

clerks should also review the signature, and the ballot should be rejected if at least

two of the three officials agree that the signature does not match. (Id.) The OEB

expressly instructs county officials to comply with state law. (Id.)

Contrary to Plaintiff’s claim that the Prompt Notification Rule and the OEB

have significantly disrupted the signature verification process, these measures have

had no detectable effect on the absentee ballot rejection rate since the last general

election in 2018. (Harvey Dec. ¶¶ 6, 7). An analysis of the number of absentee-ballot

rejections for signature issues for 2020 as compared to 2018 found that the rejection

rate for absentee ballots with missing or non-matching signatures in the 2020 general

election was 0.15%; the same rejection rate for signature issues as in 2018 before

the new measures were implemented. (Id.)

ARGUMENT AND CITATION OF AUTHORITIES

I. The Court Lacks Subject Matter Jurisdiction because Plaintiffs Cannot Establish Article III Standing.

Plaintiffs raise three constitutional counts in their Complaint: (1) that the State

Defendants violated the Electors and Elections Clauses of Articles I and II (“Count

I”); that the State Defendants violated the equal protection clause of the U.S.

Constitution (“Count II”); that the State Defendants denied Plaintiffs Due Process


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related to “alleged disparate treatment of absentee/mail-in voters among different

counties” (“Count III”); and that the State Defendants denied Plaintiffs Due Process

“on the right to vote” (“Count IV”). Plaintiffs also bring a state law election contest

claim against Defendants pursuant to O.C.G.A. § 21-5-522, invoking the Court’s

supplemental jurisdiction under 28 U.S.C. § 1367. However, because Plaintiffs

cannot establish standing as to any of these causes of action, the Court lacks

jurisdiction to consider the merits of Plaintiffs’ claims and the case should be

dismissed.

Federal courts have an independent obligation to ensure that subject-matter

jurisdiction exists before reaching the merits of a dispute. Jacobson v. Fla. Sec’y of

State, 974 F.3d 1236, 1245 (11th Cir. 2020) (vacating and ordering dismissal of

voting rights case due to lack of standing). “For a court to pronounce upon . . . the

constitutionality of a state or federal law when it has no jurisdiction to do so is, by

very definition, for a court to act ultra vires.” Id. (citation omitted). “If at any point

a federal court discovers a lack of jurisdiction, it must dismiss the action.” Id.

Article III of the Constitution limits the subject-matter jurisdiction of federal

courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. A party invoking

federal jurisdiction bears the burden of establishing standing at the commencement

of the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). As an


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irreducible constitutional minimum, Plaintiffs must show they have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision. Lujan, 504 U.S.

at 561. As the party invoking federal jurisdiction, Plaintiffs bear the burden at the

pleadings phase of “clearly alleg[ing] facts demonstrating each element.” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

A. Plaintiffs have not Alleged an Injury in Fact Sufficient to Form a Basis for Standing.

Injury in fact is the “first and foremost” of the standing elements. Spokeo, 136

S. Ct. at 1547. An injury in fact is “an invasion of a legally protected interest that is

both concrete and particularized and actual or imminent, not conjectural or

hypothetical.” Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir.

2020); see also Bognet v. Sec’y Commonwealth of Pa., No. 20-3214, 2020 U.S. App.

LEXIS 35639 at *16 (3d Cir. Nov. 13, 2020) (“To bring suit, you—and you

personally—must be injured, and you must be injured in a way that concretely

impacts your own protected legal interests.”).

The alleged injury must be “distinct from a generally available grievance

about government.” Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018). This requires

more than a mere “keen interest in the issue.” Trump v. Hawaii, 138 S. Ct. 2392,

2416 (2018); see also Lance v. Coffman, 549 U.S. 437, 440– 41 (2007) (“Our refusal


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to serve as a forum for generalized grievances has a lengthy pedigree. . . . [A]

generalized grievance that is plainly undifferentiated and common to all members of

the public” is not sufficient for standing).

It is for this reason that the Eleventh Circuit found lack of standing in the

Wood case. The plaintiff in that case could not “explain how his interest in

compliance with state election laws is different from that of any other person. Indeed,

he admits that any Georgia voter could bring an identical suit. But the logic of his

argument sweeps past even that boundary. All Americans, whether they voted in this

election or whether they reside in Georgia, could be said to share [plaintiff’s] interest

in “ensur[ing] that [a presidential election] is properly administered.” (slip op., Ex.

A, at 11).

Plaintiffs have fared no better at articulating a particularized grievance that is

somehow different than that of the general voting public. In fact, throughout their

Complaint, Plaintiffs allege that their interests are one and the same as any Georgia

voter. See, e.g. Compl. at ¶ 156 (“Defendants…diluted the lawful ballots of Plaintiffs

and of other Georgia voters and electors…”); ¶ 163 (“Defendants further violated

Georgia voters’ rights…”), ¶ 199 (“all candidates, political parties, and voters,

including without limitation Plaintiffs, have a vested interest in being present and

having meaningful access to observe and monitor the electoral process”). Having


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confirmed that their interests are no different than the interests of all Georgia voters,

Plaintiffs have articulated only generalized grievances insufficient to confer standing

upon them to pursue their claims.

B. Plaintiffs do not have Standing as Presidential Electors. Plaintiffs assert that by virtue of their status as Republican presidential

electors, they are “candidates” that have standing to raise whatever variety of

election complaints that they may choose. For this proposition, they cite to only a

single case: Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020). However, Carson was

predicated on Minnesota election laws that differ from Georgia’s and upon facts that

are distinguishable from the Plaintiffs’ case. Further, the Third Circuit in Bognet

recently rejected Plaintiff’s broad reading of Carson. In that case, the court found

that a congressional candidate lacked standing to pursue claims under the Elections

and Elector clauses based on a generalized “right to run.” It specifically noted its

disagreement with Carson, saying “The Carson court appears to have cited language

from [Bond v. United States, 564 U.S. 211 (2011)] without considering the context—

specifically, the Tenth Amendment and the reserved police powers—in which the

U.S. Supreme Court employed that language. There is no precedent for expanding

Bond beyond this context, and the Carson court cited none.” 2020 U.S. App. LEXIS

35639 at *24, fn. 6; see also Hotze v. Hollins, No. 4:20-CV-03709, 2020 WL


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6437668 at *2 (S.D. Tex. Nov. 2, 2020) (holding candidate lacked standing under

Elections Clause); Looper v. Boman, 958 F.Supp. 341, 344 (M.D. Tn. 1997)

(candidate lacked standing to claim that violations of state election laws had

disenfranchised voters as “[h]ow other people vote…does not in any way relate to

plaintiff’s own exercise of the franchise and further does not constitute concrete and

specific judicially cognizable injury.”); Moncier v. Haslam, 1 F.Supp.3d 854 (E.D.

Tn. 2014) (plaintiff denied opportunity to be placed on ballot as candidate for

judicial office shared the same generalized grievance as a large class of citizens and

failed to demonstrate concrete and particularized injury).

In finding that presidential elector did have standing to challenge purported

violations of state election laws, Carson relies heavily on specific provisions of

Minnesota elections law that treated presidential electors the same as other

candidates for office. However, in Georgia, unlike in Minnesota, all persons

possessing the qualifications for voting and who have registered in accordance with

the law are considered “Electors.” O.C.G.A. § 21-2-2(7). Presidential electors in

Georgia are not elected to public office, but perform only a limited ministerial role

in which they appear at the Capitol on the designated date and time to carry out the

expressed will of Georgia’s electors by casting their votes for President and Vice

President in the Electoral College. O.C.G.A. § 21-2-11. Presidential electors need


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not file notices of candidacy otherwise required of political candidates. O.C.G.A.

§ 21-2-132. Their names do not appear on the ballot; instead, the names of the

candidates for President and Vice President appear on the ballot. O.C.G.A. § 21-2-

325. Georgia electors do not elect any presidential electors individually; instead,

“that slate of candidates shall be elected to such office which receives the highest

number of votes cast.” O.C.G.A. § 21-2-501(f).

The Eleventh Circuit has held that voters do not suffer a “concrete and

particularized injury” simply because their preferred candidate loses an election (see

Jacobson, 974 F.3d at 1252), and that such a harm would be based on “generalized

partisan preferences” which are insufficient to establish standing. Id.; see also Gill

v. Whitford, 138 S.Ct. 1916, 1933 (2018) (rejecting standing based on “group

political interests, not individual legal rights”). Plaintiffs have failed to articulate

how they, as presidential electors, have suffered any injury not common to their

partisan group political interests, or that would not have also been suffered by all

Georgia electors generally.

C. Plaintiffs’ Alleged Injuries are not Traceable to the State Defendants. Not only have Plaintiffs failed to demonstrate an injury in fact, they cannot

satisfy the causation requirement of standing, which requires that “a plaintiff’s injury

must be ‘fairly traceable to the challenged action of the defendant, and not the result


22

of the independent action of some third party not before the court.’” Jacobson, 974

F.3d at 1253 (citation omitted); see also Hollywood Mobile Estates Ltd. v. Seminole

Tribe of Fla., 641 F.3d 1259, 1265 (11th Cir. 2011) (holding that an injury sufficient

to establish standing cannot “result [from] the independent action of some third party

not before the court.”).

Plaintiffs have introduced declarations and affidavits from witnesses that raise

disparate complaints about a variety of events that occurring at various times and

places during the November election and subsequent audit. These complaints focus

on actions allegedly taken by local elections officials and other third parties that are

not named as defendants in this case.12 Whatever one might conclude from these

varied allegations, they all have one thing in common: none of the actions

complained of are attributable in any way to any of the State Defendants. Instead,

they were taken by local elections officials not named as parties to this case, and any

12 Examples of these complaints include allegations that Dekalb County elections workers were “more hostile” to Republican observers than Democratic observers (Silva Aff. 06-9 Ex. 18, ¶14), that a Cobb County volunteer audit monitor witnessed “already separated paper machine receipt ballots with barcodes in the Trump tray, placing them in to the Biden tray” (Johnson Aff., Compl., Ex. 17, ¶¶4-5), and that an audit observer at the Lithonia location was too far away from ballots to see how they had been voted and that some auditors were validating ballots without reading them aloud to another auditor. (O’Neal Aff., 6-10, Exhibit J, ¶5-8).


23

injuries that might have resulted from those actions are not traceable to and cannot

be redressed by the State Defendants.

With regard to Plaintiffs’ conspiratorial claims related to Dominion

equipment and software, there has been no allegation whatsoever that any of the

State Defendants participated in any conspiracy or collusion with Dominion or any

other third party malicious actor to cause any harm to Plaintiffs or any Georgia

voters. The only allegation made against any of the State Defendants is that

Governor Kemp and Secretary Raffensperger somehow “rushed” through the

equipment selection process. However, this process was an open, competitive

bidding process, conducted pursuant to Georgia procurement law, and during

Curling hearings, and no allegation has been made as to how any action or inaction

taken by any of the State Defendants during that bidding process might have caused

any of Plaintiffs’ alleged injuries.

Finally, to the extent that Plaintiffs claim injury as a result of any improprieties

in the mailing, processing, validation or tabulation of absentee ballots, these injuries

again would not be traceable to any of the State Defendants. Absentee ballots are

mailed, processed, validated, and tabulated by local elections officials. See O.C.G.A.

§ 21-2-386. Having failed to establish that any of their purported injuries are

traceable to or redressable by the State Defendants, Plaintiffs lack standing and their


24

claims should be dismissed. See Jacobson, 974 F.3d at 1253. See also Anderson v.

Raffensperger, 1:20-CV-03263, 2020 WL 6048048, at *22 (N.D. Ga. Oct. 13, 2020)

(applying Jacobson to dismiss election related claims against State Defendants).

II. Plaintiffs’ Claims are Moot.

The Eleventh Circuit held in the Wood decision today that federal challenges

to the certification of the presidential election results in Georgia are now moot. “‘We

cannot turn back the clock and create a world in which’ the 2020 election results are

not certified.” Wood v. Raffensperger, slip op. at 17 (quoting Fleming v. Gutierrez,

785 F.3d 442, 445 (10th Cir. 2015)). Accordingly, the case “no longer presents a live

controversy with respect to which the court can give meaningful relief.” Troiano v.

Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1282 (11th Cir.

2004). Mootness is jurisdictional—because a federal court may only adjudicate

cases and controversies, and a ruling that cannot provide meaningful relief is an

impermissible advisory opinion. Id.

The Court “cannot prevent what has already occurred.” De La Fuente v.

Kemp, 679 F. App’x 932, 933 (11th Cir. 2017); Yates v. GMAC Mortg. LLC, No.

1:10-CV-02546-RWS, 2010 WL 5316550, at *2 (N.D. Ga. Dec. 17, 2010) (“The

Court is powerless to enjoin what has already occurred.”). While Plaintiffs

purportedly seek “decertification” of the certifications that Secretary Raffensperger


25

and Governor Kemp have already executed, they cite no authority whatsoever to

support the notion that a court could order such relief. If the Plaintiffs believed that

the results certified by Secretary Raffensperger and Governor Kemp were invalid

for fraud or other grounds specified in O.C.G.A. § 21-2-522, Georgia provides an

adequate remedy at law by setting forth the procedures for a state law election

contest to be initiated in the Superior Court of Fulton County. O.C.G.A. §§ 21-2-

520, et seq. However, there is simply no precedent for a federal court to issue an

injunction requiring either Governor Kemp or Secretary Raffensperger to

“decertify” their already-issued certifications or to certify results in direct

contravention of the actual election result.

III. Plaintiffs’ Claims are Barred by the Eleventh Amendment.

Plaintiffs’ federal claims are asserted against the individually named State

Defendants in their official capacities. (Doc. 1 at ¶¶ 31-33). These claims are barred

by the Eleventh Amendment. The Eleventh Amendment bars suit against a State or

one of its agencies, departments or officials, absent a waiver by the State or a valid

congressional override, when the State is the real party in interest. Kentucky v.

Graham, 473 U.S. 159, 169 (1985). Because claims against public officials in their

official capacities are merely another way of pleading an action against the entity of

which the officer is an agent, “official capacity” claims against a state officer are


26

included in the Eleventh Amendment’s bar. Kentucky, 473 U.S. at 165. While an

exception to Eleventh Amendment immunity exists under Ex parte Young, 209 U.S.

123 (1908), it is limited to suits against state officers for prospective injunctive

relief. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24 (1997). “A

federal court cannot award retrospective relief, designed to remedy past violations

of federal law.” Id.

Plaintiffs’ claims for injunctive and declaratory relief, premised on the

conduct of the November 3, 2020 General Election and the certification of results

that have already taken place, are barred because they are retrospective in nature.

“Retrospective relief is backward-looking, and seeks to remedy harm ‘resulting from

a past breach of a legal duty on the part of the defendant state officials.’” Seminole

Tribe of Fla. v. Fla. Dep’t of Revenue, 750 F.3d 1238, 1249 (11th Cir. 2014) (quoting

Edelman v. Jordan, 415 U.S. 651, 668 (1974)). “Simply because the remedy will

occur in the future, does not transform it into ‘prospective’ relief. The term,

‘prospective relief,’ refers to the ongoing or future threat of harm, not relief.”

Fedorov v. Bd. of Regents, 194 F. Supp. 2d 1378, 1387 (S.D. Ga. 2002). Plaintiffs’

claims for any relief related to the rules and regulations governing the conduct of the

November 3, 2020, election or any alleged past security lapses, miscounting of votes,


27

or election irregularities are entirely retrospective and barred by the Eleventh

Amendment.

IV. Laches Bars Plaintiffs’ Claims for Post-Election Relief.

In Wood v. Raffensperger, 2020 U.S.Dist. LEXIS 218058 (Nov. 20. 2020),

this Court found that claims raised by Plaintiffs’ counsel Lin Wood were barred by

the doctrine of laches. While Plaintiffs’ claims overlap significantly with Wood’s

claims, the facts here are even more compelling when it comes to a finding of laches.

Plaintiffs waited even longer than Wood did to file this action. As in Wood, virtually

all of the complaints that Plaintiffs allege regarding the security of Georgia’s voting

system or the propriety of State Election Board rules or regulations could have been

raised prior to the election.

To establish laches, State Defendants must show “(1) there was a delay in

asserting a right or a claim, (2) the delay was not excusable, and (3) the delay caused

[them] undue prejudice.” United States v. Barfield, 396 F.3d 1144, 1150 (11th Cir.

2005); see also Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1326 (11th

Cir. 2019) (“To succeed on a laches claim, [defendant] must demonstrate that

[p]laintiffs inexcusably delayed bringing their claim and that the delay caused it

undue prejudice.”).


28

Where, as here, a challenge to an election procedure is not filed until after an

election has already been conducted, the prejudice to the state and to the voters that

have cast their votes in the election becomes particularly severe. Once the election

has been conducted, any harm that might arise from a purported constitutional

violation must be weighed against “such countervailing equitable factors as the

extremely disruptive effect of election invalidation and the havoc it wreaks upon

local political continuity.” Soules v. Kauaians for Nukolii Campaign Committee, 849

F.2d 1176, 1177 (9th Cir. 1988). For this reason, “if aggrieved parties, without

adequate explanation, do not come forward before the election, they will be barred

from the equitable relief of overturning the results of the election.” Id. at 1180-81

(citing Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182-83 (4th

Cir. 1983); see also Curtin v. Va. State Bd. of Elections, No. 1:20-cv-0546, 2020

U.S. Dist. LEXIS 98627, *16-17 (E.D. Va. May 29, 2020) (rejecting a similar

challenge to state official guidance as barred by laches due to plaintiffs’ failure to

raise the challenge prior to the election). To hold otherwise “permit[s], if not

encourage[s], parties who could raise a claim to lay by and gamble upon receiving a

favorable decision of the electorate and then, upon losing, seek to undo the ballot

results in a court action.” Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973).


29

Plaintiffs delayed considerably in asserting their claims. To the extent that

they had any concerns regarding the vulnerability of Dominion’s voting systems,

they could have raised those claims long before the election. Each of the absentee

ballot regulations and procedures that Plaintiffs now complain of were adopted well

before the November 3, 2020 election, and any claims related to the application of

those rules during that election are subject to dismissal here for the same reasons

that they were dismissed in Wood. And, with regard to the purported “irregularities”

reported by Plaintiffs’ voter and observer declarants, Plaintiffs offer no explanation

why they did not attempt to address those issues with the relevant local election

officials at the time, but instead waited until after the election officials completed

the initial count and audit and certified those results.

As the Wood court recognized, Defendants and the public at large would be

significantly injured if Plaintiffs were permitted to raise these challenges after the

election has already taken place. 2020 U.S.Dist. LEXIS 218058 at *23 (“Wood’s

requested relief could disenfranchise a substantial portion of the electorate and erode

the public’s confidence in the electoral process.”); see also Arkansas United v.

Thurston, No. 5:20-cv-5193, 2020 WL 6472651, at *5 (W.D. Ark. Nov. 3, 2020)

(“[T]he equities do not favor intervention where the election is already in progress

and the requested relief would change the rules of the game mid-play.”).


30

V. The Court should Abstain from Granting Relief.

The relief Plaintiffs seek is nothing short of overturning the November

election. The ad damnum clause asks this Court to (1) order the Defendants to de-

certify the election results; (2) enjoin the Governor from transmitting the certified

results to the Electoral College; and instead (3) require the Governor to transmit a

certification that President Trump received the majority of votes in Georgia. (Doc.

1 ¶ 211(1-3); Doc. 101 at 100.) There are numerous problems with this proposed

relief. First, it violates the principles of federalism. Second, the Pullman doctrine

warrants dismissal. Finally, and at the very least, this lawsuit should be stayed

pending the outcome of state election challenges pursuant to the Colorado River

doctrine.

On federalism, the Eleventh Circuit recently held that it is “doubtful” that a

federal court could compel a state to promulgate a regulation. Jacobson, 974 F.3d at

1257. First, federal courts are only able to order state defendants from “refrain[ing]

from violating federal law.” Id. (citing Va. Office for Prot. & Advocacy v. Stewart,

563 U.S. 247, 255 (2011)). Much of Plaintiffs’ proposed relief cannot be reconciled

with this binding precedent. Specifically, Plaintiffs do not seek to just refrain the

Governor and the Secretary, they seek to compel them to certify a different candidate

than the election laws demand, which is wholly inconsistent with Georgia’s Election


31

Code and the thrice-audited results. The relief sought is particularly offensive to

federalism principles in the light of the election challenges pending in state court

that significantly mirror the claims brought in this lawsuit. As the Plaintiffs

themselves now recognize, “Georgia law makes clear that post-election litigation

may proceed in state Court.” Wood v. Raffensperger, slip op. at 9. Indeed, Plaintiffs’

Complaint repeatedly claims that they are bringing their lawsuit pursuant to Georgia

statutes that provide the very basis to challenge elections. (Doc. No. 1 ¶¶ 150

(O.C.G.A. § 21-2-522), 183-207 (O.C.G.A. §§ 21-2-521, 21-2-522). It is hard to

imagine a more significant challenge to federalism than for a party to come to federal

court asking that court to reverse certified election results without giving the State

an opportunity to act pursuant to its own statutory scheme.

These concerns are recognized by the Pullman doctrine, which is “appropriate

‘in cases presenting a federal constitutional issue which might be mooted or

presented in a different posture by a state court determination of pertinent state

law.’” 3637 Corp., Inc. v. City of Miami, 314 F. Supp. 3d 1320, 1334 (S.D. Fla.

2018) (citing Moheb, Inc. v. City of Miami, 756 F.Supp.2d 1370, 1372 (S.D. Fla.

2010) (quoting Abell v. Frank, 625 F.2d 653, 656–57 (5th Cir. 1980)). Here, the

constitutional issue presented—whether the legislature’s delegation of rulemaking

authority to the SEB is valid, and whether the SEB exceeded that authority when


32

promulgating various emergency rules—violates the federal constitution. In other

words, the Court cannot answer the constitutional question without first deciding

that the state agency exceeded its authority under State law. This is a classic Pullman

situation, which examines and requires that “(1) there must be an unsettled issue of

state law; and (2) there must be a possibility that the state law determination will

moot or present in a different posture the federal constitutional questions

raised.” Id. at 1372–73 (citing Abell, 625 F.2d at 657). Judge Jones reached the same

conclusion last December in another election-related lawsuit, Fair Fight, Inc. v.

Raffensperger.13 This Court should do the same and dismiss the lawsuit.

For a similar reason, Plaintiffs’ requested relief violates the Colorado River

Doctrine. There are numerous pending challenges to the November election that

have properly been filed in Georgia’s courts, including, according to press

statements by Mr. Wood’s counsel in the Wood litigation, one filed late on December

4, 2020, by President Trump. At least one seeks nearly identical relief as the

Plaintiffs’ lawsuit. Under similar circumstances, the Eleventh Circuit has indicated

that a stay of federal proceedings is warranted under the Colorado River doctrine,

which “authorizes a federal ‘district court to dismiss or stay an action when there is

an ongoing parallel action in state court.’” Moorer v. Demopolis Waterworks &

13 A true and accurate copy of the December Order is attached as Exhibit E.


33

Sewer Bd., 374 F.3d 994, 997–98 (11th Cir. 2004) (citing LaDuke v. Burlington

Northern Railroad Co., 879 F.2d 1556, 1558 (7th Cir.1989)). Factors considered in

the Colorado River analysis include: the desire to “avoid piecemeal litigation,”

whether state or federal law governs the issue, and whether the state court can protect

all parties’ rights. Id. at 987 (citation omitted).

Each of these factors warrants staying the litigation. The bulk of Plaintiffs’

complaint addresses issues of state law: how absentee ballot requests and ballots are

inspected, the authority of the General Assembly to delegate authority to the SEB

and the Secretary, and the criteria for certifying elections. Moreover, the state court

election challenges are to move swiftly. Thus, the possibility of piecemeal litigation

is real and concrete. Finally, the relief that the parties in the state court challenges

can obtain would protect all parties’ rights. The remedies available to Georgia courts

when ruling on election challenges are spelled out in state law. See O.C.G.A. § 21-

2-527(d). Under these circumstances, Colorado River factors are satisfied, and the

election challenge should proceed in state court under the same state laws that the

Plaintiffs raised in their Complaint.


34

VI. Plaintiffs’ Motion for Injunctive Relief Should be Denied.

Even if Plaintiffs could overcome the jurisdictional defects that are fatal to

their claims, they still fail to satisfy the requirements for the extraordinary injunctive

relief they seek.

“A preliminary injunction is an extraordinary remedy never awarded as of

right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). To prevail on

their motion, Plaintiffs are required to show: (1) a substantial likelihood of prevailing

on the merits; (2) that the plaintiff will suffer irreparable injury unless the injunction

issues; (3) that the threatened injury to the movant outweighs whatever damages the

proposed injunction may cause the opposing party; and (4) the injunction would not

be adverse to the public interest. Duke v. Cleland, 954 F.2d 1526, 1529 (11th Cir.

1992). The Court “should pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.

A. Plaintiffs are not likely to succeed on the merits of their claims.

1. Plaintiffs’ equal protection claims fail because they cannot show arbitrary and disparate treatment among different classes of voters. Plaintiffs’ equal protection claims fail for the same reason their counsel’s

equal protections claims failed in Wood. In the voting rights context, equal protection

means that “[h]aving once granted the right to vote on equal terms, the state may


35

not, by later arbitrary and disparate treatment, value one person’s vote over that of

another.” Bush v. Gore, 531 U.S. 98, 104 (2000) (citation omitted). Typically, when

deciding a constitutional challenge to state election laws, federal courts apply the

Anderson-Burdick framework that balances the burden on the voter with the state’s

interest in the voting regulation. Crawford v. Marion Cty. Election Bd., 553 U.S.

181, 190 (2008); Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318-19

(11th Cir. 2019).

But, as the Wood court recognized, Plaintiffs’ claims do not fit within this

framework. 2020 U.S. Dist. LEXIS 218058 at *25. Plaintiffs have not articulated a

cognizable harm that invokes the Equal Protection Clause. Any actions taken by the

State Defendants were taken “in a wholly uniform manner across the entire state.”

Id. at 26. No voters – including the Plaintiffs – were treated differently than any

other voter. Id. (citing Wise v. Circosta, 978 F.3d 93, 100 (4th Cir. 2020).

Nor have Plaintiffs set forth a “vote dilution” claim. None of the Plaintiffs

have alleged that any action of Defendants have burdened their ability to cast their

own votes. Instead, their claims, like Wood’s, appear to be that because some votes

were improperly counted or illegally cast, these illegal or improperly counted votes

somehow caused the weight of ballots cast lawfully by Georgia voters to be

somehow weighted differently than others. Id. at 27. Both the district court in Wood


36

court and the Third Circuit Court of Appeals in Bognet “squarely rejected” this

theory. Bognet, 2020 WL 6686120, at *31-2 (“if dilution of lawfully cast ballots by

the ‘unlawful’ counting of invalidly cast ballots were a true equal-protection

problem, then it would transform every violation of state election law…into a

potential federal equal-protection claim”); see also Jacobson, 974 F.3d at 1247

(rejecting partisan vote dilution claim).

The Supreme Court’s decision in Bush v. Gore does not support Plaintiff’s

case (see Doc. 6 at 16-17), as that case found a violation of equal protection where

certain counties were utilizing varying standards for what constituted a legal vote in

the 2000 Florida recount. 531 U.S. at 105 (“The question before us … is whether the

recount procedures … are consistent with its obligation to avoid arbitrary and

disparate treatment of the members of its electorate”). Here, any actions taken by the

State Defendants were undertaken state-wide. The isolated “irregularities”

complained of by Plaintiff’s various declarants, if true, would have taken place at

the county level under the supervision of elections officials that are not parties to

this case. All actions of the State Defendants have been uniform and applicable to

all Georgia counties and voters, in order to avoid the kind of ad hoc standards that

varied from county to county as found unconstitutional in Bush. They are the exact

opposite of arbitrary and disparate treatment.


37

2. Plaintiffs’ claim under the Electors and Elections Clauses fails. The electors clause of the United States Constitution provides that “[e]ach

State shall appoint, in such Manner as the Legislature thereof may direct, a Number

of Electors, ”who, in turn, cast the State’s votes for president. U.S. Const. art. II, §

1, cl. 2. The General Assembly established the manner for the appointment of

presidential electors in O.C.G.A. § 21-2-10, which provides that electors are selected

by popular vote in a general election. Plaintiffs fail to show how any act of the State

Defendants has altered this process.

Similarly, Plaintiffs fail to show how State Defendants have violated the

elections clause, which provides that “[t]he Times, Places, and Manner of holding

elections for Senators and Representatives, shall be prescribed in each State by the

Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. Plaintiffs complain about a variety

of regulations or procedures related to absentee ballot processing, without

articulating precisely how those regulations or procedures run afoul of the elections

clause. In any event, the State Election Board has the authority, delegated by the

legislature, “[t]o formulate, adopt, and promulgate such rules and regulations … as

will be conducive to the fair, legal, and orderly conduct of primaries and elections”

so long as those rules are “consistent with law.” O.C.G.A. 21-2-31(2). Thus, while

no one disagrees that State Defendants are not members of the Georgia legislature,


38

Plaintiff’s claim depends on the assumption that the rules and procedures used to

process absentee ballots during the November 3, 2020, election were somehow

inconsistent with Georgia’s election code.

But this simply is not so. The SEB Rule is consistent with State law, and a

Georgia court would likely say the same. Under Georgia precedent, when an agency

empowered with rulemaking authority (like the SEB is), the test applied to regulation

challenges is quite deferential. Georgia courts ask whether the regulation is

authorized by statute and reasonable. Albany Surgical, P.C. v. Dep’t of Cmty. Health,

257 Ga. App. 636, 637 (2002). The answer to both questions is an unqualified “yes.”

As shown, the SEB is empowered to promulgate regulations. O.C.G.A. § 21-

2-31(1). As recognized by Judge Grimberg in Wood, it is normal and constitutional

for state legislatures to delegate their authority in such a manner. 2020 U.S.Dist.

LEXIS 218058 at *10. The regulations are also reasonable. There is no conflict

between the signature verification regulation and statutes cited by the Plaintiffs,

O.C.G.A. §§ 21-2-386(a)(1)(C). (Doc. No. 1 at 23.) The statute requires an absentee

ballot where a signature “does not appear to be valid” to be rejected and notice

provided to the voter. Id. The challenged SEB Rule, which merely requires “an

additional safeguard to ensure election security by having more than one individual

review an absentee ballot’s information and signature for accuracy before the ballot


39

is rejected,” is consistent with this approach. Wood, 2020 U.S.Dist. LEXIS 218058

at *10. No statute cited by the Plaintiffs mandates that only one county official

examine the absentee ballot, and that the review process involves several officials

does not make it any less rigorous or inconsistent with the statutory law. (See Harvey

Decl. ¶¶ 3, 5). A Georgia court would likely hold the same, because state courts have

said that a “regulation must be upheld if the agency presents any evidence to support

the regulation.” Albany Surgical, P.C. v. Dep’t of Cmty. Health, 257 Ga. App. 636,

640 (2002). Mr. Harvey’s declaration certainly satisfies that standard, and it should

be obvious that having a verification process in place designed to ensure uniform

statewide application of the laws for determining consideration of an absentee ballot

does not lead to invalid votes.

Any remaining doubt must be resolved in the State’s favor, as the Plaintiffs

have not identified any conflict in the language. This is what Judge Grimberg rightly

concluded when he held that: “The record in this case demonstrate that, if anything,

Defendants’ actions in entering into the Settlement Agreement sought to achieve

consistency among county election officials in Georgia, which furthers Wood’s

stated goals of conducting “[f]ree, fair, and transparent elections.” Wood at * 10

(emphasis and brackets in original). This ends the inquiry and is fatal to Plaintiffs’

claims in Counts I, III, IV, and V.


40

3. Plaintiffs’ due process claims fail. Plaintiffs’ motion fails to articulate a discernable claim under the due process

clause. It is unclear what process Plaintiffs claim that they were due or how any of

the State Defendants failed to provide that process. Count II of Plaintiffs’ Complaint,

while captioned “Denial of Due Process” vaguely describes an undefined “disparate

treatment” with regard to cure processes and argues that the disparate treatment

“violates Equal Protection guarantees.” See Compl. at ¶172. Count IV of Plaintiffs’

Complaint is captioned “Denial of Due Process on the Right to Vote”, and appears

to describe a claim of vote dilution or debasement – citing to various equal protection

cases. See Compl. at ¶§176-80. Plaintiffs’ Motion for Preliminary Injunction does

not include any discussion of due process at all.

Plaintiffs have not articulated a cognizable procedural due process claim. A

procedural due process claim raises two inquires: “(1) whether there exists a liberty

or property interest which has been interfered with by the State and (2) whether the

procedures attendant upon that deprivation were constitutionally sufficient.”

Richardson v. Texas Sec’y of State, 978 F.3d 220, 229 (5th Cir. 2020) (citing

Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). The party

invoking the Due Process Clause’s procedural protections bears the “burden . . . of

establishing a cognizable liberty or property interest.” Richardson, 978 F.3d at 229


41

(citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). Plaintiffs have not clearly

articulated what liberty or property interest has been interfered with by the State

Defendants, or how any procedures attendant to the purported deprivation were

constitutionally sufficient. As the Wood court noted:

…the Eleventh Circuit does “assume that the right to vote is a liberty interest protected by the Due Process Clause.” Jones v. Governor of Fla., 975 F.3d 1016, 1048 (11th Cir. 2020). But the circuit court has expressly declined to extend the strictures of procedural due process to “a State’s election procedures.” New Ga. Project v. Raffensperger, 976 F.3d 1278, 1282 (11th Cir. 2020) (“The generalized due process argument that the plaintiffs argued for and the district court applied would stretch concepts of due process to their breaking point.”).

2020 U.S. Dist. LEXIS 218058 at *33. Nor have Plaintiffs articulated a cognizable substantive due process claim.

The types of voting rights covered by the substantive due process clause are

considered narrow. Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). This does

not extend to examining the validity of individual ballots or supervising the

administrative details of an election. Id. In only “extraordinary circumstances will a

challenge to a state election rise to the level of a constitutional deprivation.” Id.

As the Wood court recognized:

Although Wood generally claims fundamental unfairness, and the declarations and testimony submitted in support of his motion speculate as to wide-spread impropriety, the actual harm alleged by Wood concerns merely a “garden variety” election dispute.


42

2020 U.S. Dist. LEXIS 218058 at *35. Further, “[p]recedent militates against a

finding of a due process violation regarding such an ordinary dispute over the

counting and marking of ballots.” Id. (citing Gamza v. Aguirre, 619 F.2d 449, 453

(5th Cir. 1980) for the proposition that “If every state election irregularity were

considered a federal constitutional deprivation, federal courts would adjudicate

every state election dispute.”).

The same is true here. Plaintiffs have introduced only speculative, conclusory

and contradictory testimony from “experts” that would do no more than establish a

possibility of irregularities if their analysis were correct, along with a hodge-podge

of disparate claims by third-party voters and observers claiming that they observed

a variety of different purported irregularities in a handful of different counties (none

of which are parties to this action). Plaintiffs have failed to demonstrate the

“extraordinary circumstances” rising to the level of a constitutional deprivation that

are necessary to support a substantive due process claim. Plaintiffs have therefore

failed to demonstrate a substantial likelihood of success on the merits of any claim

for violation of the 14th Amendment’s guarantee of either procedural or substantive

Due Process.


43

4. Plaintiffs’ Election Contest Claims Fail.

As shown, the Plaintiffs have effectively filed an election challenge under

Georgia law. Seeking to stop certification does not save the Plaintiffs’ Complaint for

at least two additional reasons. First, it has long been the rule that electors are state

and not federal officials. See Walker v. United States, 93 F.2d 383, 388 (8th Cir.

1937). Consequently, it is state law that determines how challenges to electors are

made, and Georgia law sets forth that process as explained above. This also

demonstrates why abstention is appropriate. Second, to the extent that the Plaintiffs

argue that county election officials did not properly count mail-in and absentee

ballots, there are state remedies available to challenge the acts of those county

officials. Indeed, Georgia’s laws governing election challenges provide for just that.

Finally, and as addressed elsewhere in this brief, the Jacobson decision makes

clear that challenges to acts of county officials must be brought against those county

officials. 974 F.3d at 1254. It is insufficient to rely on the Secretary’s general powers

“to establish traceability.” Anderson, 2020 WL 6048048 at *23. Similarly, reliance

on the phrase “chief election official” or statements about the uniformity in the

administration of election laws have been deemed insufficient by the Anderson court

when it applied Jacobson. Id.


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In sum, because Plaintiffs are not likely to succeed on the merits of any of

their claims, injunctive relief must be denied.

B. The loss of Plaintiffs’ preferred candidate is not irreparable harm.

Plaintiffs fail to articulate any specific harm that he faces if his requested relief

is not granted, other than the vague claim that an infringement on the right to vote

constitutes irreparable harm. However, Plaintiffs do not allege that their right to vote

was denied or infringed in any way—only that their preferred candidate lost. It is not

irreparable harm if they are not able to “cast their votes in the Electoral College for

President Trump,” because “[v]oters have no judicially enforceable interest in the

outcome of an election.” Jacobson, 974 F.3d at 1246 (“Voters have no judicially

enforceable interest in the outcome of an election.”).

Irreparable harm goes to the availability of a remedy—not a particular

outcome. Certifying the expressed will of the electorate is not irreparable harm, but

rather inevitable and legally required within our constitutional framework. There is

a remedy available to extent that the losing candidate—rather than a dissatisfied

voter, supporter, or presidential elector—seeks post-certification remedies, and such

election contests have been filed in state court and remain pending.


45

C. The balance of equities and public interest weigh heavily against an injunction.

These remaining injunction factors—balancing the equities and public

interest—are frequently considered “in tandem” by courts, “as the real question

posed in this context is how injunctive relief at this eleventh-hour would impact the

public interest in an orderly and fair election, with the fullest voter participation

possible.” Curling v. Kemp, 334 F. Supp. 3d 1303, 1326 (N.D. Ga. 2018), aff'd in

part, appeal dismissed in part, 761 F. App’x 927 (11th Cir. 2019); see also Purcell,

549 U.S. at 4. The Court must “balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested

relief,” paying “particular regard as well for the public consequences in employing

the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.

Here, “the threatened injury to Defendants as state officials and the public at

large far outweigh any minimal burden on [Plaintiffs]. Wood, 2020 U.S. Dist. LEXIS

218058 at *38. “Confidence in the integrity of our electoral process is essential to

the functioning of our participatory democracy,” and court orders affecting elections

“can themselves result in voter confusion and consequent incentive to remain away

from the polls.” Purcell, 549 U. S. at 4-5. For this reason, the Supreme Court “has

repeatedly emphasized that lower federal courts should ordinarily not alter the


46

election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic

Nat’l Comm., 140 S.Ct. 1205, 1207 (April 6, 2020) (per curiam).

The Eleventh Circuit recently held that the Purcell principle applies with even

greater force when voting has already occurred. See New Ga. Project v.

Raffensperger, 976 F.3d 1278, 1283 (11th Cir. 2020) (“[W]e are not on the eve of

the election—we are in the middle of it, with absentee ballots already printed and

mailed. An injunction here would thus violate Purcell’s well-known caution against

federal courts mandating new election rules—especially at the last minute.”); see

also Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th Cir.

2003) (“Interference with impending elections is extraordinary, and interference

with an election after voting has begun is unprecedented.”).

Here, the election has already been conducted, and the slate of presidential

electors has been certified. Granting Plaintiffs’ extraordinary relief would only serve

to “disenfranchise [] voters or sidestep the expressed will of the people.” Donald J.

Trump for President, 2020 U.S. App. LEXIS 37346 at *28. As the district court in

Wood correctly recognized, “To interfere with the result of an election that has

already concluded would be unprecedented and harm the public in countless ways.”

2020 U.S. Dist. LEXIS 218058 at *37-38. Plaintiffs seek even broader relief than

that sought in Wood. If granted, Plaintiffs’ requested relief would disenfranchise not


47

only Georgia’s absentee voters but would invalidate all votes cast by Georgia

electors.

CONCLUSION

For the foregoing reasons, Plaintiffs’ emergency motion for injunctive relief

must be denied and the Court should dismiss the action with prejudice. Furthermore,

the current TRO entered by the Court should be immediately dissolved to prevent

ongoing harm to the ability of county elections officials to begin early voting for the

January run-off, for the reasons shown in State Defendants’ motion to modify the

TRO.

Respectfully submitted, this 5th day of December, 2020.

Christopher M. Carr 112505 Attorney General Bryan K. Webb 743580 Deputy Attorney General Russell D. Willard 760280 Senior Assistant Attorney General

/s/ Charlene S. McGowan Charlene S. McGowan 697316 Assistant Attorney General 40 Capitol Square SW Atlanta, GA 30334 [email protected] 404-458-3658 (tel)


48

Carey Miller Georgia Bar No. 976240 [email protected] Josh Belinfante Georgia Bar No. 047399 [email protected] Melanie Johnson Georgia Bar No. 466756 [email protected] Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street NW Atlanta, GA 30318 Telephone: (678) 701-9381 Facsimile: (404) 856-3250

Attorneys for State Defendants


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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing has been formatted using Times New

Roman font in 14-point type in compliance with Local Rule 7.1(D).

/s/ Charlene S. McGowan Charlene S. McGowan Assistant Attorney General


50

CERTIFICATE OF SERVICE

I hereby certify that I have this day electronically filed the foregoing STATE

DEFENDANTS’ CONSOLIDATED BRIEF IN SUPPORT OF THEIR

MOTION TO DISMISS AND RESPONSE TO PLAINTIFF’S EMERGENCY

MOTION FOR INJUNCTIVE RELIEF with the Clerk of Court using the

CM/ECF system, which will send notification of such filing to counsel for all parties

of record via electronic notification.

Dated: December 5, 2020.

/s/ Charlene S. McGowan Charlene S. McGowan Assistant Attorney General


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